DocketNumber: No. 11 CV 6351(HB)
Citation Numbers: 902 F. Supp. 2d 445
Judges: Baer
Filed Date: 10/10/2012
Status: Precedential
Modified Date: 11/26/2022
OPINION & ORDER
Before the Court are two motions for judgment on the pleadings and three motions for summary judgment. Defendants include HathiTrust;
Defendants’ motion for judgment on the pleadings, filed in December 2011, seeks the dismissal of the Associational Plaintiffs on standing grounds to the extent they asserted the rights of their members and sought dismissal of claims involving the Orphan Works Project (“OWP”) as not ripe for adjudication. For the reasons set forth below, Defendants’ motion for judgment on the pleadings is GRANTED in part and DENIED in part. Plaintiffs’ motion for judgment on the pleadings insofar as it seeks a ruling that fair use and other defenses are unavailable to the Defendants as a matter of law is DENIED. In June 2012, Defendants, Defendant Intervenors and Plaintiffs each filed motions for summary judgment. Defendants’ and Defendant Intervenors’ motions for summary judgment are GRANTED, and Plaintiffs’ motion for summary judgment is DENIED.
Also before the Court are two unopposed motions for leave to file briefs as amici, brought by the American Library Association, Association of College and Research Libraries, and Association of Research Libraries (the “Library Amici”), and the Digital Humanities and Law Scholars (the “Digital Humanities Amicus”). Both motions are GRANTED.
Defendants have entered into agreements with Google, Inc. (“Google”), that allow Google to create digital copies of works in the Universities’ libraries in exchange for which Google provides digital copies to Defendants (the “Mass Digitization Project” or “MDP”). Compl. ¶ 1-2; Pis.’ 56.1 ¶ 62; Defs.’ 56.1 ¶¶ 30-31.
For works with known authors, Defendants use the works within the HDL in three ways: (1) full-text searches; (2) preservation; and (3) access for people with certified print disabilities. Defs.’ 56.1 ¶48. The full-text search capabilities allow users to search for a particular term across all the works within the HDL. Id. ¶ 49. For works that are not in the public domain or for which the copyright owner has not authorized use, the full-text search indicates only the page numbers on which a particular term is found and the number of times the term appears on each page. Id. ¶ 50.
In an eloquent oral argument by Mr. Goldstein
Four of the HathiTrust Universities (all except Indiana University) have also agreed to participate in the OWP, an initiative to “identify and make available to University students, faculty and library patrons full copies of so-called ‘orphan works’ — works that are protected by copyright but whose rights holders theoretically cannot be located by procedures established by the HathiTrust.” Compl. ¶ 3. The original process to determine which works would be included as orphan works (“Orphan Works”) involved a decision as to whether a work was commercially available for sale, and if not, an attempt to contact the copyright holder. Id. ¶ 74; Pis.’ 56.1 ¶ 114; Defs.’ 56.1 ¶ 79. If that attempt failed, then HathiTrust would list the bibliographical information for the work on the HathiTrust Orphan Candidates webpage for ninety days, after which time the work would have become available for “Full view” on HathiTrust to UM students, professors, and other authenticated users and visitors to libraries at UM’s campuses. Compl. ¶74; Pis.’ 56.1 ¶ 114. UM intended to allow “access to orphan works for the purpose of online review, with the number of users permitted to view a given work limited at any one time to the number of copies held by the UM library.” Defs.’ 56.1 ¶81. Other schools subsequently announced participation in this project. Compl. ¶ 75. After the filing of the original complaint in this action, UM announced that the OWP would be temporarily suspended because the procedures used to identify Orphan Works had apparently allowed many works to make their way onto the Orphan Works Lists in error. Id. ¶ 78; Defs.’ 56.1 ¶¶ 83-84. UM has not yet provided a new process for identifying Orphan Works, or even a timeline for when that might happen, “although it continues to study ways to improve the orphan identification process.” Defs.’ 56.1 ¶ 84.
By their Complaint, Plaintiffs seek (1) a declaration that the systematic digitization of copyrighted materials without authorization violates Sections 106 and 108 of the Copyright Act, (2) an injunction to prevent the reproduction, distribution, or display of Plaintiffs’ or other copyrighted works except as provided by § 108, (3) an injunction to prohibit Defendants’ provision of works to Google for digitization without authorization, (4) a declaration that the OWP will infringe the copyrights of Plaintiffs and others, (5) an injunction that prohibits Defendants from proceeding with the OWP, and (6) the impoundment of all unauthorized digital copies within Defendants’ possession.
I. DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS
Defendants seek dismissal of the Associational Plaintiffs on standing grounds to the extent they assert the rights of then-members. Defendants argue that the Associational Plaintiffs are precluded from representation of their members on both constitutional and statutory bases. The Associational Plaintiffs respond that they are ideally suited to represent the largely identical copyright claims of their members. Pis.’ Opp’n to Defs.’ J. Pleadings 4. They do not, however, address the crux of Defendants’ argument, which is that the Copyright Act simply does not include this type of standing.
Defendants further seek dismissal of claims involving the OWP as not ripe for adjudication. Plaintiffs’ claims concern the OWP as it may exist in the future, not as it existed before HathiTrust abandoned the original program. As I later explain, I do not know and cannot anticipate whether the features of that hypothetical program will raise the same issues that possibly defeated the first OWP, assuming there will even be a renewed OWP.
A. Legal Standard
“A Rule 12(c) motion for judgment on the pleadings based upon a lack of subject matter jurisdiction is treated as a Rule 12(b)(1) motion to dismiss the complaint.” United States v. Comprehensive Cmty. Dev. Corp., 152 F.Supp.2d 443, 448-49 (S.D.N.Y.2001). “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Id.
B. Constitutional and Prudential Standing of the Associational Plaintiffs
For reasons similar to those stated by the court in the suit against Google brought by many of the same associations, the constitutional basis for standing is satisfied. Author’s Guild v. Google, Inc., 282 F.R.D. 384, 391 (S.D.N.Y.2012). To assert standing as a representative of its members, an association must meet the constitutional requirements described by the Supreme Court in Hunt v. Washington State
As to the first prong, Defendants argue that the Associational Plaintiffs “have not made any specific allegations with respect to any copyright works held by their members.” Defs.’ Mem. J. Pleadings 9. In Building & Construction Trades Council of Buffalo, N.Y. & Vicinity v. Downtown Development, Inc., 448 F.3d 138, 145 (2d Cir.2006), the Second Circuit held that plaintiffs asserting associational standing need not “name names” in the complaint. Defendants’ argument that this case is distinguishable solely because it involved a different statute is unpersuasive.
As to the third prong, Defendants argue that the individual participation of the Associational Members will be required to demonstrate that Plaintiffs hold valid copyrights and to evaluate the fair-use defense. Defs.’ Mem. J. Pleadings 10-13. “[T]he third prong of the associational standing test is ‘prudential,’ not constitutional, and is ‘best seen as focusing on ... matters of administrative convenience and efficiency.’ ” Alliance for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 651 F.3d 218, 229 (2d Cir.2011) (quoting United Food & Commercial Workers Union Local 751 v. Brown Grp. Inc., 517 U.S. 544, 555-56, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996)). “[T]he fact that a limited amount of individuated proof may be necessary does not in itself preclude associational standing.” Nat’l Ass’n of Coll. Bookstores, Inc. v. Cambridge Univ. Press, 990 F.Supp. 245, 249 (S.D.N.Y.1997); see also N.Y. State Nat’l Org. of Women v. Terry, 886 F.2d 1339 (2d Cir.1989). Where an association seeks an injunction or declaration that an entire practice is unlawful, courts have concluded that the individual proof required is limited. Nat’l Ass’n of Coll., 990 F.Supp. at 250 (explaining that associational standing would facilitate adjudication better than “requiring duplicative proof’ from each member). The recent decision in Google, 282 F.R.D. at 390-91, addressed nearly identical arguments about the third prong of Hunt. The Google Court concluded that the limited amount of individual proof required to establish copyright ownership and the fair-use defense was insufficient to defeat associational standing. Id. Likewise, the Associational Plaintiffs here satisfy the Hunt test; both Article III and the prudential third prong of Hunt are satisfied.
C. Statutory Standing of the Associational Plaintiffs
Copyright is a “creature of statute.” Stewart v. Abend, 495 U.S. 207, 251, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990). It “does not exist at common law — it originated, if at all, under the acts of [C]ongress.” Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 663, 8 L.Ed. 1055 (1834). As a result, “[n]o one can deny that [Congress has] the power to prescribe the conditions on which such right shall be enjoyed.” Id. at 663-64. Congress may define standing as to a particular cause of action more narrowly than what is constitutionally permitted.
The Court has subject-matter jurisdiction over the members’ individual copyright enforcement actions because the Associational Plaintiffs satisfy constitutional and prudential standing requirements and are therefore “entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). As to the issue of statutory standing — and as will be discussed more fully below — the domestic Associational Plaintiffs simply may not assert the cause of action on which the third-party enforcement of its members’ copyrights depend. Put another way, those Associational Plaintiffs can win on behalf of only themselves, but can lose on behalf of their members as well.
Even though Defendants have successfully raised a fair-use defense as to the MDP and the HDL (discussed later), the questions of statutory standing and the merits of this case do not overlap and will be discussed separately. Cf. Steel Co., 523 U.S. at 97 n. 2, 118 S.Ct. 1003 (“[Djepending upon the asserted basis for lack of statutory standing, [the merits inquiry and the statutory standing inquiry] are sometimes identical, so that it would be exceedingly artificial to draw a distinction between the two.”); Roberts v. Hamer, 655 F.3d 578, 580 (6th Cir.2011) (“The question [of whether a party has statutory standing] is closely related to the merits inquiry (oftentimes overlapping it) and is analytically distinct from the question whether a federal court has subject-matter jurisdiction to decide the merits of a case.”).
1. Statutory Standing Under U.S. Law
Although Article III is satisfied, the Authors Guild, the Australian Society of Authors Limited, and TWUC (collectively, “U.S. Associational Plaintiffs”) lack statutory standing.
The limited case law available outside of this Circuit also suggests that statutory standing for associations is not permitted.
The Copyright Act is based on Congress’s power “[t]o promote the Progress of Science ..., by securing for limited Times to Authors ... the exclusive Right to ... their ... Writings.” U.S. Const, art. I, § 8, cl. 8. The basic purpose of copyright — to provide a limited monopoly for authors primarily to encourage creativity — further suggests that Congress did not intend for third-party enforcement of those rights. See Fox Film Corp. v. Doyal, 286 U.S. 123, 127, 52 S.Ct. 546, 76 L.Ed. 1010 (1932) (“The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.”); see also Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 45 L.Ed.2d 84
2. Statutory Standing Under Foreign Law
Under the “national treatment” principle of the Berne Convention, Berne Convention art. 5(1), and the Universal Copyright Convention (“UCC”), “an author who is a national of one of the member states of either Berne or the UCC, or one who first publishes his work in any such member state, is entitled to the same copyright protection in each other member state as such other state accords to its own nationals.” Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, 89 (2d Cir.1998) (quoting Nimmer on Copyright § 1.05 (1998)). The Second Circuit in Itar-Tass affirmed the district court’s holding that a reporters’ organization had standing to assert claims on behalf of its members after noting that Russian copyright law “authorizes the creation of organizations ‘for the collective administration of the economic rights of authors ... in cases where the individual exercise thereof is hampered by difficulties of a practical nature.’ ” Id. at 90-94 (quoting Russian Copyright Law, art. 44(1)). The Second Circuit wrote, “UJR, the reporters’ organization, may well be able in this litigation to protect the rights of the reporters whose articles were copied.” Id. Although not explicit, the Second Circuit’s decision in Itar-Tass supports the view that whether a foreign association has satisfied the statutory standing requirements necessary to assert a claim is determined by foreign law.
Four of the Associational Plaintiffs, ALCS, UNEQ, NFF and SFF, assert that they have standing to sue on behalf. of their members under foreign law.
D. Ripeness of the Orphan Works Project
The Complaint requests a declaration that the “distribution and display of copyrighted works through the HathiTrust Orphan Works Project will infringe the copyrights of Plaintiffs and others likely to be affected” and an injunction that prohibits the OWP. Compl. Demand for Relief (a)(ii), (b)(iii). Plaintiffs seek a ruling on the OWP as it will exist, and not specifically as it existed at the moment that the initial complaint was filed. See also Pis.’ Mem. J. Pleadings 24-25 (“Absent an injunction, Defendants will proceed with the 0”WP and infringe the copyrights of Plaintiffs, the Associational Plaintiffs’ members and other unsuspecting authors and rights holders.”). Adjudication as to the OWP is not ripe for judicial review.
“Article III of the Constitution limits the jurisdiction of the federal courts to cases or controversies ‘of sufficient immediacy and reality’ and not ‘hypothetical or abstract dispute[s].’ ” See, e.g., Hayes v. Carlin Am., Inc., 168 F.Supp.2d 154, 159 (S.D.N.Y.2001) (internal citations omitted). “Ripeness is a doctrine rooted in both Article Ill’s case or controversy requirement and prudential limitations on the exercise of judicial authority.” Murphy v. New Milford Zoning Comm’n, 402 F.3d 342, 347 (2d Cir.2005). The determination of whether a claim is ripe is a two-prong inquiry that requires courts to “evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Id. (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)).
The claims here are not fit for adjudication. Were I to enjoin the OWP, I would do so in the absence of crucial information about what that program will look
II. PLAINTIFFS’ MOTION FOR JUDGMENT ON THE PLEADINGS
Plaintiffs’ motion for partial judgment on the pleadings seeks a ruling that “Defendants’ admitted systematic reproduction, distribution, and use of millions of copyright-protected books are not shielded by the First Amendment, the fair-use defense, or any other provision of the Copyright Act.” Pis.’ Mem. J. Pleadings 1.
A. Legal Standard
A motion for judgment on the pleadings enables the moving party to have the court rule preferably in its favor based on the merits of the pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir.1988). The court applies the same standard in a Rule 12(c) motion as it does in a Rule 12(b)(6) motion, and the court must accept as true the allegations contained in the pleading and draw all reasonable inferences in favor of the non-moving party. L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d Cir.2011). “A party is entitled to judgment on the pleadings only if it is clear that no material issues of fact remain to be resolved and that it is entitled to judgment as a matter of law.” Citibank, N.A. v. Morgan Stanley & Co. Int’l, PLC, 724 F.Supp.2d 407, 414 (S.D.N.Y.2010).
B. Availability of Fair-Use Defense
Section 107 provides a defense to a claim of copyright infringement on the grounds of fair use. Section 108 of the Copyright Act accords libraries the right to make a limited number of copies of certain works for specified purposes, and it explicitly states that “[njothing in this section ... in any way affects the right of fair use as provided by section 107.” 17 U.S.C. § 108(f)(4). In spite of the clear language that Section 108 provides rights to libraries in addition to fair-use rights that might be available, Plaintiffs argue that I should find that the Section 107 fair-use defense is precluded by Section 108 in this case.
Plaintiffs also argue that the legislative history suggests that fair use is not available as a defense for Defendants. They cite a 1983 Report on Section 108, in which the Copyright Office stated: “[Mjuch of 108’ photocopying would be infringing but for the existence of that section, thus leaving section 107 often clearly unavailable as a basis for photocopying not authorized by section 108.” Pis.’ Mem. J. Pleadings 22-23 (quoting Register of Copyrights, Report of the Register of Copyrights, Library Reproduction of Copyrighted Works (17 U.S.C. 108), at 96 (1983)).
The briefs submitted by Defendant Intervenors and the Library Amici, to whom I granted leave to file a memorandum as amici curiae, further convince me that fair use is available as a defense for the Defendants, and nothing Plaintiffs submitted convinces me that fair use is unavailable as a defense, or that the manner of reproduction is prohibited simply because it does not fall within Section 108.
C. Availability of Other Defenses
Plaintiffs barely address the other proposed defenses asserted by Defendants to protect the MDP and OWP. In one paragraph, Plaintiffs argue that Section 108 prevents libraries from asserting other potential rights and defenses besides fair
MOTIONS FOR SUMMARY JUDGMENT
I. LEGAL STANDARD
A district court may not grant summary judgment if there exists a genuine issue of material fact. See Cotarelo v. Vill. of Sleepy Hollow Police Dep’t, 460 F.3d 247, 251 (2d Cir.2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). “For summary judgment purposes, a ‘genuine issue’ exists where the evidence is such that a reasonable jury could decide in the non-moving party’s favor.” Cambridge Realty Co., LLC v. St. Paul Fire & Marine Ins. Co., 421 Fed.Appx. 52, 53 (2d Cir.2011) (internal citations omitted). “Fair use is a mixed question of law and fact.” Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). Courts resolve fair use at the summary judgment stage where there are no genuine issues of material fact. See Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 137 (2d Cir.1998); see also Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 117 (2d Cir.1998) (affirming district court’s grant of summary judgment where defendant asserted fair-use defense).
II. FAIR USE
To establish a prima facie case of copyright infringement, a plaintiff must demonstrate “ownership of a valid copyright” and “copying of constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). Plaintiffs identify 116 works (the “Identified Works”) as to which they assert direct ownership of the copyrights and allege that Defendants copied the works. Defendants concede that Plaintiffs have established a prima facie case of infringement as to some of these works.
A. Purpose and Character of the Use
The first fair-use factor considers the “purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C. § 107(1). The MDP was undertaken with several goals in mind. The MDP allows scholars to identify relevant works far more efficiently. Defs.’ 56.1 ¶¶ 18-23. In addition, the program helps Defendants preserve their collections in the face of normal deterioration during circulation, natural disasters, or other catastrophes that decimate library collections, as well as loss due to theft or misplacement. Id. ¶¶ 2, 11-13, 15.
The character of the use also suggests that the first prong is satisfied. Several university libraries have entered into agreements with Google whereby Google converts the hard-copy works in their libraries into digital format. Defs.’ 56.1 ¶ 30. For works that are not in the public domain or for which an author has not “expressly authorized use,” a search for a particular term reveals the pages on which the term is found and the number of times the term is found on each page. Id. ¶ 50. No actual text from the book is revealed, id. ¶ 52, except to print-disabled library patrons at UM.
Transformative uses are likely to satisfy the first factor. Campbell, 510 U.S. at 575, 114 S.Ct. 1164 (“The central purpose of this investigation is to see ... whether the new work merely supersede^] the objects of the original creation ... or instead adds something new, with a further purpose or different character, altering the
Several courts have upheld wholesale copying of works where the use and purpose for the copies was clearly distinguishable. from those of the original. See A.V. v. iParadigms, LLC, 562 F.3d 630, 640 (4th Cir.2009) (concluding that copying and archiving of student papers “was completely unrelated to expressive content and instead aimed at detecting and discouraging plagiarism”); Perfect 10 v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir.2007) (finding that Google’s copying of Internet content to make it searchable was trans-formative because “a search engine transforms the image into a pointer directing a user to a source of information”); Kelly v. Arriba Soft Corp., 336 F.3d 811, 819 (9th Cir.2003) (finding that copying to produce exact replicas of artistic works displayed in thumbnail form on the internet to facilitate searches was transformative because it was “unrelated to any aesthetic purpose”).
The use of digital copies to facilitate access for print-disabled persons is also transformative.
B. Nature of the Copyrighted Works
“[Sjome works are closer to the core of intended copyright protection than others.” Campbell, 510 U.S. at 586, 114 S.Ct. 1164. Copying factual works is more likely fair use than copying creative works. Blanch v. Koons, 467 F.3d 244, 256 (2d Cir.2006). However, where a use is trans-formative, the nature of the copyrighted works is not likely to “separate the fair use sheep from the infringing goats.” Campbell, 510 U.S. at 586, 114 S.Ct. 1164; see also Harper & Row, 471 U.S. at 546, 105 S.Ct. 2218. Here, Plaintiffs identify 116 works that they allege were unlawfully digitized by Defendants as part of the MDP. Pis.’ 56.1 ¶¶ 138-53. Approximately 76 percent of the identified works are fiction. Goldman Deck ¶ 6. In the HDL as a whole, approximately 9 percent consists of prose fiction, poetry, and drama. Wilkin Deck ¶ 67. Because the use is transformative, intended to facilitate key-word searches or access for print-disabled individuals, the second factor is not dispositive. Bill Graham, 448 F.3d at 612 (“[Tjhe sec
C. Amount of the Work Copied
The third fair-use factor considers whether the amount of copying was reasonable in relation to the purpose. Sony, 464 U.S. at 449-50, 104 S.Ct. 774. “[T]he extent of permissible copying varies with the purpose and character of the use.” Campbell, 510 U.S. at 586-87, 114 S.Ct. 1164. The question is whether “no more was taken than necessary.” Id. at 587, 114 S.Ct. 1164. Sometimes it is necessary to copy entire works. Bill Graham, 448 F.3d at 613; Arriba Soft, 336 F.3d at 821. “Intermediate” copies may not be infringing when that copying is necessary for fair use. See Sundeman v. Seajay Soc’y, Inc., 142 F.3d 194, 206 (4th Cir.1998) (finding that it was fair use to copy fragile manuscript so that the author of a critical review could study it without inflicting damage). Here, entire copies were necessary to fulfill Defendants’ purposes of facilitation of searches and access for print-disabled individuals. See Arriba Soft, 336 F.3d at 821 (“If Arriba only copied part of the image, it would be difficult to identify it, thereby reducing the usefulness of the visual search engine.”). Plaintiffs argue that Defendants did not need to retain copies to facilitate searches; however, the maintenance of an electronic copy was necessary to provide access for print-disabled individuals.
D. Impact on the Market for or Value of the Works
The fourth factor examines “whether the secondary use usurps the market of the original work.” NXIVM Corp., 364 F.3d at 482. Courts consider “only those [markets] that the creators of original works would in general develop or license others to develop.” Campbell, 510 U.S. at 591, 592, 114 S.Ct. 1164 (“[W]hen ... the second use is transformative, market substitution is at least less certain, and market harm may not be so readily inferred.”). Where a use is noncommercial, as it is here, the plaintiff must show “by a preponderance of the evidence that some meaningful likelihood of future harm exists”, Sony, 464 U.S. at 451, 104 S.Ct. 774, a test Plaintiffs fail at least on this fact pattern.
Plaintiffs allege market harm on several distinct bases. First, they argue that “[e]ach digital copy of a book that Defendants created ... rather than [purchased] through lawful channels, represents a lost sale.” Pis.’ MSJ 22. This argument ignores the fact that purchase of an additional copy would not have allowed either full-text searches or access for the print-disabled individuals, two transformative uses that are central to the MDP.
Plaintiffs’ second argument is that Defendants have “expose[d] Plaintiffs’ property to immense security risks that have the potential to cannibalize the book market through ... widespread internet piracy.” Id. at 23. However, the expert economist that Plaintiffs rely on in support of this argument admitted that he was unfa
Finally, Plaintiffs argue that “Defendants activities will harm Plaintiffs by undermining existing and emerging licensing opportunities” such as a “collective management system [which would] permit certain of the activities of the Defendants in this case while providing compensation to copyright owners.” Pis.’ MSJ 25-27. Plaintiffs admit that they cannot identify “any specific, quantifiable past harm, or any documents relating to such past harm.” Petersen Deck ¶¶ 2-21.
Defendants offer substantial evidence that it would be prohibitively expensive to develop a market to license the use of works for search purposes, access for print-disabled individuals, or preservation purposes. Waldfogel Deck ¶¶ 7, 22-24 (estimating that the costs of such a license as to the works in the HDL would be in the neighborhood of $569 million and that the potential revenue generated would not cover these costs so it was not a “commercially viable endeavor”). This also assumes that the holder of each copyright could be identified, id. ¶ 24, a tenuous assumption to say the least. Plaintiffs characterize this as an argument that “it is permissible to steal the goods if it is too expensive to
The provision of access for print-disabled individuals likewise does not significantly impact a market. Kerscher Deck ¶ 34. At oral argument, Plaintiffs repeatedly emphasized that “only 32” print-disabled students had signed up to participate in the program at the UM. See, e.g., Aug. 6, 2012 Tr. 15:6-7. This argument only emphasizes that print-disabled individuals are a tiny minority, and the development of a market to provide them with access on the scale of the MDP is consequently almost impossible to fathom.
E. Balancing the Fair-Use Factors
The totality of the fair-use factors suggest that copyright law’s “goal of promoting the Progress of Science ... would be better served by allowing the use than by preventing it.” Bill Graham, 448 F.3d at 608 (quotation marks omitted). The enhanced search capabilities that reveal no in-copyright material, the protection of Defendants’ fragile books, and, perhaps most importantly, the unprecedented ability of print-disabled individuals to have an equal opportunity to compete with their sighted peers in the ways imagined by the ADA protect the copies made by Defendants as fair use to the extent that Plaintiffs have established a prima facie case of infringement.
The provision of equal access to copyrighted information for print-disabled individuals is mandated by the ADA and the Rehabilitation Act of 1976. The impetus for the ADA was Congress’ explicit conclusion that people with disabilities historically had been denied “the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous.” 42 U.S.C. § 12101(a)(8); Maurer Dec! ¶ 7 (“[Blind students] compete under a severe handicap. That handicap is not lack of sight, but a lack of access to information in a world in which information is the key to success.”). To begin to remedy this injustice, the ADA “provide[s] a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Id. § 12101(b)(1). Congress imposed on institutions an obligation to provide equal access and recognized that “technological advances ... may require public accommodations to provide auxiliary aids and services in the future which today they would not be required because they would be held to impose undue burdens on such entities.” H.R. Rep. 101-485(11), at 108 (1990), 1990 U.S.C.C.A.N. 303, 391.
Under the Chafee Amendment to the Copyright Act, “authorized entities)” are permitted “to reproduce or distribute copies ... of a previously published, nondramatic literary work ... in specialized formats exclusively for use by the blind or other persons with disabilities.” 17 U.S.C. § 121. An “authorized entity” is a nonprofit organization or governmental agency “that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities.” Id. at § 121(d)(1). The ADA requires that libraries of educational institutions have a primary mission to reproduce and distribute their collections to print-disabled individuals, making each library a potential “authorized entity” under the Chafee Amendment. So far, only UM has made its works available to print-disabled individuals, and its Declarations make it clear that it had a primary goal to improve access for print-disabled individuals. Kerscher Deck ¶ 30. I conclude that UM has “a primary mission” to provide access for print-disabled individuals, and it is consequently an authorized entity. The provision of access to previously published non-dramatic literary works within the HDL fits squarely within the Chafee Amendment, although Defendants may certainly rely on fair use, as explained above, to justify copies made outside of these categories or in the event that they are not authorized entities.
CONCLUSION
I have considered the parties’ remaining arguments and find them to be without merit. For the foregoing reasons, Plaintiffs’ motions are DENIED. Defendants’ motion for judgment on the pleadings is GRANTED in part and DENIED in part: the Associational Plaintiffs have Article III standing; the U.S. Associational Plaintiffs lack statutory standing; and Plaintiffs’ OWP claims are not ripe. Defendants’ and Defendant Intervenors’ motions for
SO ORDERED.
. ''HathiTrust” is the name of the service of University of Michigan ("UM”) in which the Universities and other institutions participate under agreements with UM. Defs.’ J. Pleadings 1 n. 1. The Universities consist of UM, the University of California, the University of Wisconsin, Indiana University, and Cornell University.
. Courts have discretion to allow amicus briefs. Jamaica Hosp. Med. Ctr., Inc. v. United Health Grp., Inc., 584 F.Supp.2d 489, 497 (E.D.N.Y.2008). Although Plaintiffs initially
. Because I have before me both motions for judgment on the pleadings and motions for summary judgment, I cite to both the Complaint and the parties' Rule 56.1 Statements, where appropriate.
. References to the "Complaint” are to the first amended complaint.
. Daniel Goldstein of Brown Goldstein & Levy, LLP, attorney for the National Federation of the Blind.
. George Kerscher, Ph.D., Senior Officer of Accessible Technology at Learning Ally (formerly known as Recording for the Blind & Dyslexic), which creates recorded copies of print materials for print-disabled persons, and Secretary General of the DAISY Consortium (Digital Accessible Information System) and President of the International Digital Publishing Forum (IDPF), which are international organizations that work to promote accessibility in electronic publishing.
. I gave Plaintiffs numerous opportunities to address this issue, which included a letter to the parties dated July 12, 2012. Plaintiffs failed to respond to Defendants’ argument that the text of the Copyright Act precludes associational standing. At oral argument on the parties' motions for summary judgment, I again questioned Plaintiffs about their position with respect to Defendants' statutory standing argument. Plaintiffs’ attorney responded that, "the question of whether or not a third prong of the Hunt Test as to whether the individual author has itself have to have a right is prudential.” Aug. 6, 2012 Tr. 22:19-22. While I agree that the third prong of the Hunt test is prudential, this once again fails to answer the question of whether Congress has precluded associational standing in the text of the Copyright Act itself, a question of statutory interpretation and one that Plaintiffs have repeatedly sidestepped or obfuscated.
. Compare Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 47 (2d Cir.1997) (holding that Title II of the Americans with Disabilities Act ("ADA”) "evinces a congressional intention to define standing to bring a private action ... as broadly as is permitted
. See N.Y. Metro Area Postal Union v. Potter, No. 00 Civ. 8538, 2003 WL 1701909, at *2 (S.D.N.Y. Mar. 31, 2003) (concluding labor organization lacked standing to pursue claim under the Family and Medical Leave Act provision that provided a private right of action to an “eligible employee”); see also United Food & Commercial Workers Union, Local 1564 of N.M. v. Albertson’s, Inc., 207 F.3d 1193, 1201 (10th Cir.2000) (concluding that Congress intended to bar labor organizations from suing on behalf of their members in Fair Labor Standards Act cases); Reid v. Dep’t of Commerce, 793 F.2d 277, 282 (Fed.Cir.1986) (concluding that labor organization did not have standing to bring suit under Civil Service Act provision allowing for suits by "an employee”).
. Certain of the foreign associations claim that they have standing by operation of foreign law. That argument is addressed infra in Motions for Judgment on the Pleadings Section II.C.2.
. In both Olan Mills, Inc. v. Linn Photo Co., 795 F.Supp. 1423, 1427 (N.D.Iowa 1991), rev’d on other grounds, 23 F.3d 1345 (8th Cir.1994), and Google, 282 F.R.D. at 391, the courts concluded that the constitutional standing requirements were satisfied as to associations that asserted copyright claims. The issue of whether Congress intended to provide a cause of action to associations, and so whether there was statutory standing, was not before the court in either case. Although courts must raise Article III standing requirements sua sponte, Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006), there is no similar requirement that they raise a statutory standing problem, which speaks to whether or not the elements of the cause of action are satisfied. Radha Pathak, Statutory Standing and the Tyranny of Labels, 62 Okla. L.Rev. 89, 114-15 (2009).
. My conclusion that the Copyright Act precludes associational standing in no way curtails the right of associations who own their own copyrights from asserting infringement claims as to those copyrights. Four of the Associational Plaintiffs, the Authors Guild, ALF, TWUC and ASA, assert a right to sue because they own and control copyrights that were digitized by Defendants.
. See Petersen Decl. Ex. F ALCS: UK at 5 ("Plaintiff has the right, by virtue of a mandate executed by certain of its members, including members whose works were digitized and reproduced by Defendants without authorization, to bring an action on behalf of such members against Defendants for infringing such members' copyrights.”); Rosenthal Decl. Ex. C ALCS: U.K., Copyright, Designs and Patents Act (1988) § 101A (permitting a non-exclusive licensee to bring an action for copyright infringement if the "infringing act was directly connected to a prior licensed act of the licensee” and the license is in writing and "expressly grants the non-exclusive licensee a right of action under this section”); Rosenthal Decl. Ex. D UNEQ: Quebec, Professional Syndicates Act, R.S.Q., ch. S-40, § 9(11) ("Professional syndicates may appear before the courts and acquire, by gratuitous or onerous title, any property suited to their particular objects ... and in particular ... (11) exercise before any court of law, all the rights of their members with respect to acts directly or indirectly prejudicial to the collective interest of the profession which they represent.”); Rosenthal Decl. Ex. E NFF: Norwegian Copyright Act §§ 38a, 38b (permitting an organization, “in the absence of any objection from the rightholder, [to] demand that a user who has not entered into [] an agreement ... be prohibited by a court judgment from unlawfully exploiting a work”); Rosenthal Decl. Ex. F SFF: Sweden Member Agreement §§ 1, 2, 5 ("[T]he Author assigns the Organization, or the one the Organization puts in its stead, the right to independently manage the copyright of the Author’s published works.”).
. Because I conclude that my review of the OWP is precluded on ripeness grounds, I need not address Defendants other arguments in opposition to my review of the OWP. Defendants argue that all of the Plaintiffs lack standing as to the OWP because the program was discontinued before any works became available and at the time that Plaintiffs filed the initial complaint, they failed to identify any of their works that were included in the program. Finally, Defendants argue that the OWP claims are moot.
. Plaintiffs also argue that this program is "systematic” in violation of Section 108(g). Pis.’ Reply to Pis.’ J. Pleadings 11. Defendants respond that "systematic” means reproducing a single work repeatedly, rather than reproducing all the works in their libraries. Defs.’ Opp’n to Pis.’ J. Pleadings (citing 17 U.S.C. § 108(g) (prohibiting systematic reproduction of "the same material”)). I agree.
. Plaintiffs also cite the Second Circuit's decision in Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir.2001), in support of this reading of the Copyright Act. In that case, the Second Circuit analyzed a fair-use savings clause contained in the Digital Millennium Copyright Act ("DMCA”) in evaluating a claim under Section 1201 for circumventing technical measures that control access to a copyrighted work. The savings clause there indicated that “[n]othing in this section shall affect rights, remedies, limitations or defenses to copyright infringement, including fair use, under this title.” 17 U.S.C. § 1201(c). The Second Circuit interpreted the clause as meaning that fair use was available as a defense to a claim of copyright infringement for material obtained by the circumvention, but not to the unlawful circumvention itself. Corley, 273 F.3d at 443.
. This does not suggest that Congress intended to preclude the fair-use defense where a library’s actions fall outside of Section 108. See H.R.Rep. No. 94-1476, at 78-79 (1976), 1976 U.S.C.C.A.N. 5659, 5691-5692 ("Nothing in section 108 impairs the applicability of the fair-use doctrine to a wide variety of situations involving photocopying or other reproduction by a library of copyrighted material in its collections, where the user requests the reproduction for legitimate scholarly or research purposes.”).
. Defendants challenge Plaintiffs' allegation that they have established a prima facie case of infringement as to several of the foreign works because Plaintiffs fail to provide proof of ownership under foreign law or proof that the works do not qualify as United States works. See, e.g., Defs.' Opp’n to Pis.' 56.1 ¶¶ 138, 140, 143. Defendants also challenge several of the other claims of copyright ownership. See, e.g., id. ¶ 142 (challenging ownership by Robinson because the copyright registrations "were not obtained within five years after the first publication of the work”).
. The argument that preservation on its own is a transformative use is not strong. See Texaco, 60 F.3d at 924 ("[T]he predominant archival purpose of the copying tips the first factor against the copier.”). However, the Supreme Court's decision in Sony Corp. of America v. Universal City Studios, Inc., a case in which the Court held that private copying of television broadcasts for later viewing was a protected fair use, focused on the noncommercial nature of the use. 464 U.S. 417, 449, 454, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984). Likewise, the preservation purposes of the Defendants are noncommercial in nature. See H.R.Rep. No. 94-1476, at 73 (1976), 1976 U.S.C.C.A.N. 5659, 5687 (‘‘The efforts of the Library of Congress, the American Film Institute, and other organizations to rescue and preserve this irreplaceable contribution to our cultural life are to be applauded, and the making of duplicate copies for purposes of archival preservation certainly falls within the scope of 'fair use.’ ").
. As explained in Motions for Summary Judgment Section III, infra, to the extent that the copying allows print-disabled individuals access to “previously published, non-dramatic literary work[s]” on an equal footing with sighted individuals, it is also potentially permitted under the Chafee Amendment. See 17 U.S.C. § 121. The ADA also provides strong support for the conclusion that the provision of access to print-disabled persons is a protected fair use.
. Other Defendants in HathiTrust may provide such access in the future. For a description of the way in which UM's provision of access to print-disabled individuals has already revolutionized access for its users, see supra Background and see infra Motions for Summary Judgment Section III.
. Mass digitization allows new areas of non-expressive computational and statistical research, often called "text mining.” One example of text mining is research that compares the frequency with which authors used "is” to refer to the United States rather than "are” over time. See Digital Humanities Amicus Br. 7 (“[I]t was only in the latter half of the Nineteenth Century that the conception of the United States as a single, indivisible entity was reflected in the way a majority of writers referred to the nation.”).
. Although Plaintiffs assert that the decisions in Perfect 10 and Arriba Soft are distinguishable because in those cases the works were already available on the internet, Aug. 6, 2012 Tr. 19:2-4, I fail to see why that is a difference that makes a difference. As with Plaintiffs’ attempt to bar the availability of fair use as a defense at all, this argument relies heavily on the incorrect assumption that the scale of Defendants’ copying automatically renders it unlawful. Further, the student papers uploaded to a website to check for plagiarism in the iParadigms case were not available on the internet prior to the copying. 562 F.3d at 634.
. The cases Plaintiffs cite are easily distinguishable. For example, in Texaco, 60 F.3d at 913, a corporation made photocopies of copyrighted articles for use by its researchers. The court concluded that the majority of the copies served "the same basic purpose that one would normally seek to obtain the original — to have it available on his shelf for ready reference.” Id. at 919. Likewise, in UMG Recordings, Inc. v. MP3.com, Inc., 92 F.Supp.2d 349, 351 (S.D.N.Y.2000), the court found that conversion of CDs into computer files for use by users over the internet was not transformative because the use to which the copies were put was not different than the use for the originals.
. Plaintiffs suggestion at oral argument that print-disabled individuals could have “asked permission” of all the rights holders whose works comprise the HDL borders on ridiculous. Aug. 6, 2012 Tr. 11:13-12:8.
. Not to mention that it would be a tremendous waste of resources to destroy the electronic copies once they had been made for search purposes, both from the perspective of the provision of access for print-disabled individuals and from the perspective of protecting fragile paper works from future deterioration.
. Plaintiffs argue that Defendants uses cannot be considered noncommercial because of their relationship with Google. Pis.’ Opp’n to Defs.' MSJ 12. Although the relationship between Google and Defendants is potentially relevant to the uses of the works made by Google, that issue is not before this Court. My determination that the Defendants’ uses are noncommercial relies on the uses actually made by Defendants in this case, that is, text searches, access for print-disabled persons, and preservation.
. The deposition of one of the Plaintiffs, in which he states that "colloquially, one copy of my book has been stolen,” May 31, 2012 Stiles Dep. Tr. 163:10, is unpersuasive because, as noted, the purchase of an additional copy would not have allowed Defendants to make the transformative uses of the works that they sought.
. The use in Texaco was also a commercial, non-transformative use by a for-profit entity. 60 F.3d at 931.
. Plaintiffs also argue that nonconsumptive research such as text mining, see supra note 22 and accompanying text, causes harm because authors might one day pay for licenses to use works in this manner. Again, the harm identified here is "speculative, and, at best, minimal.” Sony, 464 U.S. at 454, 104 S.Ct. 774 (citation omitted).
. See supra note 18 and accompanying text.
. As noted supra Motions for Judgment on the Pleadings Section II.B, Congress expanded the copying permitted to libraries with the enactment of Section 108. I need not decide if the MDP fits within the parameters of 17 U.S.C. § 108 because it unquestionably fits within the definition of fair use. See 17 U.S.C. § 108(f)(4) (stating that this section "in
. Plaintiffs’ suggestion at oral argument that the Chafee Amendment defines the outer bounds of protected copying on behalf of print-disabled individuals, Aug. 6, 2012 Tr. 21:3-4, is without merit. Nothing in the Chafee Amendment indicates an intent to preclude a fair-use defense as to copies made to facilitate access for the blind that do not fall within its ambit.